These Are Obama’s Two Choices in Selecting a Successor to Antonin Scalia

The
prospects of filling a Supreme Court vacancy created by Antonin
Scalia’s sudden death has only exacerbated the polarization in our
political system. It's understandable. This is not just any
vacancy. And, it's not just any moment in judicial
history.

As President Obama considers his options, politics
will obviously weigh heavily in his nomination. One option he has
ruled out is to wait and allow the next President to fill the
vacancy. Political operatives are already calculating the costs and
benefits to each party in an electoral year, not only in the
Presidential campaign, but also in the Senate with the number of open
positions and close races in swing states for incumbents that could
tip the balance in that legislative body.

However,
this is a President who has an instinct for history, especially in
anticipating future history. Like many Presidents, he is aware of
his own legacy. But, Obama sees his own Presidency in a broader
sweep, and understands that small steps now could take on a larger
role, seen 50 or 100 years from now. It is likely that he is
pondering the implications of history in his choice to replace
Antonin Scalia.

He
may see two paths he could pursue in his selection. One hint at the
first potential path came during his State of the Union address this
year. President Obama pointed to “one of the few regrets of my
presidency -- that the rancor and suspicion between the parties has
gotten worse instead of better.” If he is sincere about this
regret, about his commitment to “keep trying to be better so long
as I hold this office.” then this nomination is an opportunity to
get back on track. This President, who came to office promising a
post-partisan climate to government can make a bold nomination that
unites and get the country’s politics back on a path of compromise
and consensus so critical to effective government.

The
obstacles to such an appointment are many and easy to identify.

--
The stakes are high. The issues that the court has before it this
term - coal and climate change, immigration, health care, public
unions, affirmative action, reproductive rights, just to name the
most prominent – have been front and center on the agenda of both
ends of the political spectrum, some going back decades. Some of
these issues are in the Court because of the way that President Obama
has broadly interpreted his executive authority, in the face of a
Congress run by the opposing party that is itself deeply divided, in
the grip of a minority with little room for compromise.

--
The court opening comes well into a particularly contentious and
polarizing Presidential campaign, with the voices of anger and
frustration at both ends of the political spectrum dominating the
process so far. Those hard-liners on the extremes of both parties
will demand the appointment of someone whose views are as immoveable
as their own. Party leaders on both sides are using the nomination
to ramp up their fund-raising in a campaign that is dominated by
money, at the same time that candidates criticize the role of money
in politics.

--
Then there is the “mirage” nature of Obama’s appeal to
post-partisanship, using Princeton historian Sean Wilentz’
characterization of this unattainable prospect.
In
an essay
in the New
Republic
in October 2011 Wilentz surveys the long history of party divisions
and reveals the notion of post-partisanship as nothing more than a
“transparent campaign tactic.” He reviews the historical
precedents for abjuring partisan politics beginning with George
Washington’s oft-quoted Farewell Address plea to avoid party
divisions. Not only did Washington’s appeal fall on deaf ears, but
it too was likely inspired by partisan politics. Wilentz concludes
that “partisanship, although often manipulated and abused, has also
been Americans’ most effective vehicle for democratic social and
political reform.”

The
other historical path Obama is undoubtedly considering is the
transformative prospect of selecting a justice who would tip the
balance on the Supreme Court to rule definitively on the host of
contentious issues cited above, moving the country into the 21st
century and un-doing some of the practices most damaging to our
democracy, like the role of money and the efforts to restrict voting.
A new court majority would be able to get out from under a different
“mirage,” that of originalism, that was more a transparent slogan
to cover up deeply held partisan political viewpoints. In such a
polarized climate, Obama may heed Wilentz’s advice and stick to
partisanship, to push his agenda of change.

That
historical prospect, though, is what most frightens conservatives,
and most motivates them to stall and block any nomination, by any
means necessary. And, they have the numbers to succeed.

That
leaves Obama with the first path, one that flies in the face of
Wilentz’s wisdom, that offers him a chance to lower the “rancor
and suspicion between the parties.” That leaves Obama with perhaps
his biggest obstacle. It’s not the mirage, but who? Is there
anyone out there who, in this climate, could rise above partisanship
and be truly transformative?